Gene Schaerr v. DOJ ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 15, 2022 Decided June 9, 2023
No. 21-5165
GENE CLAYTON SCHAERR,
APPELLANT
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-00575)
Gene C. Schaerr argued the cause for appellant. With him
on the briefs were Scott D. Goodwin, Brian J. Field, and
Joshua J. Prince.
Thomas Pulham, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, and H. Thomas Byron, III, Attorney.
Before: MILLETT and RAO, Circuit Judges, and TATEL,
Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge RAO.
RAO, Circuit Judge: Gene Schaerr filed Freedom of
Information Act (“FOIA”) requests with six intelligence
agencies for any records about the unmasking of members of
President Trump’s campaign and transition team. Schaerr seeks
to uncover what he alleges was inappropriate intelligence
surveillance for political purposes. Declining to produce any
records, the Agencies issued so-called Glomar responses,
explaining that even the existence or nonexistence of such
records was exempted from FOIA. The district court granted
summary judgment for the Agencies, concluding that FOIA
exempted the information Schaerr requested and that the
Agencies had no obligation to search for responsive records
before invoking Glomar.
We agree. An agency properly issues a Glomar response
when its affidavits plausibly describe the justifications for
issuing such a response, and these justifications are not
substantially called into question by contrary record evidence.
Because the Glomar procedure protects information about even
the existence of certain records, an agency need not search for
responsive records before invoking it. Here, the Agencies have
properly invoked Glomar on the grounds that the information
Schaerr seeks is protected by FOIA Exemptions One and
Three, and nothing in the record suggests the Agencies acted in
bad faith in issuing their responses.
I.
A.
In his FOIA requests, Schaerr sought information about
foreign surveillance from the Federal Bureau of Investigation
(“FBI”), the Office of the Director of National Intelligence
(“ODNI”), the National Security Agency (“NSA”), the Central
3
Intelligence Agency (“CIA”), the Department of State
(“State”), and the National Security Division of the Department
of Justice (“NSD”). In particular, Schaerr requested
information about the Agencies’ “upstreaming” and
“unmasking” practices, which are governed by the Foreign
Intelligence Surveillance Act of 1978 (“FISA”). Pub. L. No.
95-511, 92 Stat. 1783 (codified as amended at 50 U.S.C. § 1801et seq.). FISA and its amendments authorize and regulate
electronic surveillance through a multi-step intelligence
gathering protocol. See Clapper v. Amnesty Int’l USA, 568 U.S.
398, 402–06 (2013). As relevant here, an agency may not
“intentionally target any person … located in the United
States” or any “United States person reasonably believed to be
located outside the United States.” FISA Amendments Act of
2008, Pub. L. No. 110-261, 122 Stat. 2436, 2438 (codified as
amended at 50 U.S.C. § 1881a(b)(1), (3)).
When conducting electronic surveillance, agencies
employ procedures such as “upstreaming,” which collects a
target’s communications “as they cross the backbone of the
internet with the compelled assistance of companies that
maintain those networks.” When conducting upstream
searches, intelligence agencies may incidentally capture
information from or about United States persons. In such
circumstances, FISA requires agencies “to minimize the
acquisition and retention … of nonpublicly available
information concerning unconsenting United States persons.”
50 U.S.C. § 1801(h)(1); see also 50 U.S.C. § 1881a(c)(1)(A).
Such minimization procedures must generally conceal the
identity of such persons. 50 U.S.C. § 1801(h)(2); see also 50
U.S.C. § 1881a(e)(1). Known as “masking,” this process
requires agencies to substitute the name of a United States
person with a generic label, such as “U.S. person 1.” Agencies
may request unmasking a United States person’s identity
without his consent only if his identity constitutes “foreign
4
intelligence information,” or “is necessary to understand
foreign intelligence information or assess its importance.” 50
U.S.C. § 1801(h)(2).
B.
In his FOIA requests, Schaerr sought all records
concerning the unmasking or upstreaming of 21 individuals
from January 1, 2015, to February 1, 2017. 1 The Agencies
denied the requests, relying on a “Glomar response,” 2 in which
they refused “to confirm or deny [their] possession of
responsive documents.” People for the Ethical Treatment of
Animals v. Nat’l Inst. of Health, 745 F.3d 535, 540 (D.C. Cir.
2014) (“PETA”). A Glomar response is lawful if an agency can
show that merely divulging the existence or nonexistence of
agency records would constitute information covered by a
FOIA exemption. Wolf v. C.I.A., 473 F.3d 370, 374 (D.C. Cir.
2007). The Agencies rested their Glomar responses on FOIA
Exemptions One and Three. FOIA Exemption One excludes
from disclosure matters that are “specifically authorized under
criteria established by an Executive order to be kept secret in
the interest of national defense or foreign policy” and “are in
1
Schaerr’s FOIA requests called for all records concerning the
unmasking or upstreaming of the following 21 individuals: Steve
Bannon, Lou Barletta, Marsha Blackburn, Pam Bondi, Chris Collins,
Tom Marino, Rebekah Mercer, Steven Mnuchin, Devin Nunes,
Reince Priebus, Anthony Scaramucci, Peter Thiel, Donald Trump,
Jr., Eric Trump, Ivanka Trump, Jared Kushner, Sean Duffy, Trey
Gowdy, Dennis Ross, Darrell C. Scott, and Kiron Skinner.
2
A Glomar response derives its name from a case in which the CIA
“refus[ed] to confirm or deny the existence of records about the
Hughes Glomar Explorer, a ship used in a classified CIA project.”
People for the Ethical Treatment of Animals v. Nat’l Inst. of Health,
745 F.3d 535, 540 (D.C. Cir. 2014) (cleaned up).
5
fact properly classified pursuant to such Executive order.” 5
U.S.C. § 552(b)(1). Exemption Three protects disclosure of
matters that are “specifically exempted from disclosure by
statute” if the statute “establishes particular criteria for
withholding or refers to particular types of matters to be
withheld.” Id. § 552(b)(3).
After his requests were rejected, Schaerr filed suit. The
district court granted partial summary judgment to the
Agencies, holding that the information sought was protected by
FOIA Exemptions One and Three and therefore that the
Glomar responses were appropriate. Schaerr v. U.S. Dep’t of
Just., 435 F. Supp. 3d 99, 110 (D.D.C. 2020). The court also
held that the Agencies did not have to search for responsive
records before issuing their Glomar responses and that there
was no evidence contradicting the Agencies’ affidavits or
suggesting they acted in bad faith. 3 See id. at 115–16. Schaerr
timely appealed.
II.
An agency may invoke Glomar if confirming or denying
the mere existence of responsive records would fall within one
of FOIA’s statutory exemptions. See 5 U.S.C. § 552(b)(1)–(9).
When an agency invokes Glomar, courts can grant summary
judgment based on agency affidavits alone. PETA, 745 F.3d at
540. An agency is entitled to summary judgment if its affidavits
are reasonably specific and are not substantially called into
question by contradictory evidence. See Elec. Priv. Info. Ctr. v.
3
In addition, the district court held three of the Agencies failed to
adequately search for some of the requested documents that were not
covered by the Glomar response. See id. at 128. The parties agreed
to dismiss with prejudice the claims decided adversely to the
Agencies, so those are not before us. That dismissal rendered the
partial grant of summary judgment final and appealable.
6
Nat’l Sec. Agency, 678 F.3d 926, 931 (D.C. Cir. 2012)
(“EPIC”).
Schaerr contends the Agencies are not entitled to summary
judgment. First, he insists the Agencies must search for
responsive records before issuing a Glomar response. Second,
he claims his request encompassed at least some records not
covered by Exemptions One and Three. And finally, he
maintains that even if a pre-Glomar search is unnecessary and
even if all responsive records fall within a FOIA exemption,
the Agencies are still not entitled to summary judgment
because substantial evidence of bad faith rebuts their affidavits.
We find Schaerr’s arguments unavailing and affirm the grant
of summary judgment to the Agencies.
A.
Schaerr argues the Agencies cannot invoke Glomar
without searching their records and confirming all the
requested information falls within one of FOIA’s enumerated
exemptions. He maintains that because FOIA permits only “the
piecemeal withholding of specifically exempt information,” an
agency must identify responsive records prior to issuing a
Glomar response. The Agencies did not search their records,
Schaerr says, so their Glomar responses cannot justify the
withholding of any records.
Schaerr’s demand for a record search cannot be reconciled
with FOIA, its exemptions, or our cases permitting Glomar
responses. FOIA requires agencies to make certain records
“promptly available” when requested by a member of the
public. 5 U.S.C. § 552(a)(3)(A); see also Cause of Action Inst.
v. Off. of Mgmt. & Budget, 10 F.4th 849, 854 (D.C. Cir. 2021).
This public disclosure, however, is limited by essential
exemptions that recognize the importance of Executive Branch
confidentiality and protect sensitive matters such as national
7
security. See, e.g., 5 U.S.C. § 552(b)(1)(A) (allowing agencies
to withhold classified matters in the “interest[s] of national
defense or foreign policy”).
To invoke a FOIA exemption properly, an agency
ordinarily must identify the withheld records and explain the
grounds for withholding, thereby confirming that certain
records exist. See, e.g., DiBacco v. U.S. Army, 795 F.3d 178,
188 (D.C. Cir. 2015). But we have recognized an agency may
issue a Glomar response and “refuse to confirm or deny the
existence of records where to answer the FOIA inquiry would
cause harm cognizable under [a] FOIA exception.” Wolf, 473
F.3d at 374 (cleaned up). A Glomar response is appropriate
when merely acknowledging the existence or nonexistence of
a particular record would fall within a FOIA exemption. See
EPIC, 678 F.3d at 931; Wolf, 473 F.3d at 374.
Importantly, an agency need not search its records before
invoking Glomar. We have explained that no search is
necessary because “the nature of a Glomar response” is to
“narrow[] the FOIA issue to the existence of records vel non.”
Wolf, 473 F.3d at 374 n.4. In the Glomar context, there are “no
relevant documents for the court to examine other than the
affidavits which explain the Agency’s refusal” to confirm or
deny the existence of responsive records. Id. (quoting Phillippi
v. C.I.A., 546 F.2d 1009, 1013 (D.C. Cir. 1976)). An agency
need not search for records when simply recognizing the
existence or nonexistence of responsive records is protected by
a FOIA exemption.
Circuit precedent squarely forecloses Schaerr’s claim. The
Agencies were not required to search for responsive records
because they properly issued Glomar responses that cited an
applicable FOIA exemption and explained with reasonable
specificity the basis for their response.
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B.
Although the Agencies need not search for records, we
must assess whether the Agencies’ Glomar responses properly
invoked FOIA Exemptions One and Three. To determine
“whether the existence of agency records vel non fits a FOIA
exemption,” we apply the familiar legal standards for
reviewing an agency’s reliance on a FOIA exemption. Id. at
374. The agency bears the burden of demonstrating a FOIA
exemption applies. 5 U.S.C. § 552(a)(4)(B). We review the
agency’s response de novo, affording “substantial weight to an
agency’s affidavit.” Wolf, 473 F.3d at 374 (cleaned up).
Because withholding national security information is “a
uniquely executive purview,” we exercise great caution before
compelling an agency to release such information. EPIC, 678
F.3d at 931 (cleaned up). Consistent with this approach, courts
must grant summary judgment for an agency if its affidavit: (1)
describes the justifications for nondisclosure with “reasonably
specific detail”; and (2) is not substantially called into question
by contrary record evidence or evidence of agency bad faith.
Wolf, 473 F.3d at 374; see also PETA, 745 F.3d at 540. An
agency’s justification is sufficient if it is logical or plausible.
EPIC, 678 F.3d at 931.
1.
The Agencies rely on Exemption One, which allows the
government to withhold matters that are “specifically
authorized under criteria established by an Executive order to
be kept secret in the interest of national defense or foreign
policy” and “are in fact properly classified pursuant to such
Executive order.” 5 U.S.C. § 552(b)(1). Recognizing that
national security is primarily the province of the Executive, we
decline to micromanage agency determinations that such
information should remain secret. See Am. Civil Liberties
9
Union v. U.S. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir.
2011). When reviewing agency affidavits invoking Exemption
One, we simply consider whether the agency has plausibly
asserted that the matters are in fact properly classified pursuant
to an executive order. Morley v. C.I.A., 508 F.3d 1108, 1124
(D.C. Cir. 2007).
The Agencies all relied on Executive Order 13,526, which
allows certain categories of information to be classified when,
as relevant here, an “original classification authority
determines that the unauthorized disclosure of the information
reasonably could be expected to result in damage to the
national security” and the agency “is able to identify or
describe th[at] damage.” Classified National Security
Information, Exec. Order No. 13,526 § 1.1(a)(4), 75 Fed. Reg.
707, 707 (Jan. 5, 2010).
Each agency provided an affidavit averring the
information Schaerr seeks is properly classified under
Executive Order 13,526. In their affidavits, the Agencies
maintain that confirming or denying the existence of records
related to upstreaming or unmasking would damage national
security by disclosing agency priorities, capabilities, and
methods. Such disclosure would reveal whether the Agencies
possess FISA-related intelligence on any of the 21 individuals
named in Schaerr’s FOIA request. Acknowledging the
existence of such records would force the Agencies to disclose
how they acquire, retain, and disseminate unmasking and
upstreaming requests, “thereby revealing strengths,
weaknesses, and gaps in intelligence coverage.” And, as the
FBI noted, our adversaries could use this information “to
develop and implement countermeasures” to avoid future
detection.
10
The Agencies have more than plausibly explained why any
responsive records would be classified and have provided
credible reasons for classifying this information, including that
unauthorized disclosure would damage national security and
compromise intelligence sources and methods. Schaerr’s
generalized suggestion that some responsive records might
have been improperly classified cannot overcome the
substantial weight we afford to agency classification decisions.
We conclude the Agencies’ Glomar responses have properly
invoked FOIA Exemption One because they have shown that
confirming or denying the existence of the records Schaerr
seeks would reveal classified information.
2.
The records Schaerr requests are also covered by
Exemption Three, which shields “matters” that are
“specifically exempted from disclosure by statute” if that
statute “establishes particular criteria for withholding or refers
to particular types of matters to be withheld.” 5 U.S.C.
§ 552(b)(3). In their Glomar responses, five of the six agencies
relied on the National Security Act of 1947, which “qualifies
as a withholding statute under Exemption 3.” C.I.A. v. Sims,
471 U.S. 159, 167 (1985); see also DiBacco, 795 F.3d at 183.
The National Security Act provides that “[t]he Director of
National Intelligence shall protect intelligence sources and
methods.” 50 U.S.C. § 3024(i)(1) (2016). It also prohibits the
unauthorized disclosure of such sources and methods. Id. We
have recognized that the mere acknowledgment of intelligence
sources and methods may implicate the protections of the Act.
EPIC, 678 F.3d at 931–32.
As we have already explained, granting Schaerr’s request
would force the Agencies to reveal potentially sensitive
intelligence information, interfering with their “sweeping
11
power to protect [their] intelligence sources and methods”
under the Act. Sims, 471 U.S. at 169 (cleaned up). Divulging
such information is “specifically exempted” under the National
Security Act and is therefore shielded from disclosure by FOIA
Exemption Three. See 5 U.S.C. § 552(b)(3).
C.
Finally, Schaerr maintains the Agencies cannot rely on
FOIA Exemptions One and Three because their affidavits are
rebutted by substantial evidence of agency bad faith. Schaerr
contends the evidence of bad faith forecloses summary
judgment for the Agencies based merely on their affidavits.
As we have already explained, our review of Glomar
responses in the national security context is limited. Agency
affidavits enjoy “a presumption of good faith [that] cannot be
rebutted by purely speculative claims” of agency malfeasance.
See In re Clinton, 973 F.3d 106, 113 (D.C. Cir. 2020) (cleaned
up). This presumption applies with special force in the national
security context, where we give “substantial weight to an
agency’s affidavit” and will not “second-guess” its conclusions
even when they are “speculative to some extent.” Am. Civil
Liberties Union, 628 F.3d at 619 (cleaned up); see also Dep’t
of the Navy v. Egan, 484 U.S. 518, 530 (1988) (“[C]ourts
traditionally have been reluctant to intrude upon the authority
of the Executive in military and national security affairs.”).
Recognizing the Executive Branch’s “unique insights into what
adverse [e]ffects” may arise from disclosure, we will not
ascribe bad faith to an affidavit that plausibly asserts adverse
national security consequences. Larson v. Dep’t of State, 565
F.3d 857, 864 (D.C. Cir. 2009) (cleaned up).
Schaerr’s claims cannot succeed under our longstanding
precedent. In their affidavits, the Agencies explained that
disclosing the existence or nonexistence of any responsive
12
records would contravene Executive Order 13,526 by harming
their ability to gather intelligence, protect national security, and
conduct foreign affairs. The Agencies further explained that
disclosing the existence or nonexistence of any record would
damage “intelligence sources and methods” in violation of the
National Security Act. 50 U.S.C. § 3024(i)(1). The affidavits
adequately justify the Agencies’ Glomar responses.
Schaerr points to two instances of supposed “agency bad
faith.” First, he notes former United Nations Ambassador
Samantha Power and her staff requested the unmasking of
hundreds of persons, many of whom were members of
President Trump’s campaign and transition team. Second,
Schaerr claims the Agencies illegally spied on President
Trump’s campaign and transition team. Taken together,
Schaerr asserts, these past instances of malfeasance suggest the
Agencies may be “improperly withholding information.”
Each of these allegations is either too generalized or too
attenuated from the specific classification decisions at issue to
constitute the kind of “tangible evidence of bad faith” we have
required to overcome agency affidavits. Carter v. U.S. Dep’t of
Commerce, 830 F.2d 388, 393 (D.C. Cir. 1987) (explaining that
without such “tangible evidence” “the court should not
question the veracity of agency submissions”); Hayden v. Nat’l
Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1387 (D.C. Cir.
1979) (“The sufficiency of the affidavits is not undermined by
a mere allegation of agency misrepresentation or bad faith, nor
by past agency misconduct in other unrelated cases.”).
Schaerr’s assertions fall far short of presenting a substantial
and material question as to the Agencies’ good faith in this
case.
***
13
The Agencies’ affidavits reasonably explain their Glomar
responses to Schaerr’s FOIA requests because even confirming
the existence or nonexistence of responsive records is
information exempted from FOIA. Our cases make clear the
Agencies were not required to search for records before issuing
a Glomar response. Nor does Schaerr provide evidence of bad
faith with respect to the Agencies’ FOIA process. The
judgment of the district court is thus affirmed.
So ordered.